Hall v. Commonwealth Ex Rel. Town Of South Boston
| Decision Date | 17 January 1924 |
| Citation | 121 S.E. 154 |
| Parties | HALL. v. COMMONWEALTH ex rel. TOWN OF SOUTH BOSTON. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Halifax County.
Gilly Hall was convicted of unlawfully storing ardent spirits for sale, in violation of a prohibition ordinance, of the town of South Boston, on appeal from conviction by the mayor of such town, and she brings error. Affirmed.
Wm. Leigh, Jr., and M. B. Booker, both of Halifax, for plaintiff in error.
John D. Easley, of Lynchburg, for defendant in error.
The plaintiff in error, hereafter called defendant, complains of a judgment entered on the verdict of a jury rendered September 27, 1922, convicting her of unlawfully storing ardent spirits for sale, in violation of the prohibition ordinance of the town of South Boston, and fixing her punishment at 30 days in jail and a fine of $100.
The uncontroverted facts are these:
Gilly Hall, a widow, owned, occupied, and controlled her own dwelling house, situate within one mile of the corporate limits of the town of South Boston, in Halifax county, Va. On August 12, 1922, upon the affidavit of J. T. Chaney, a policeman of Halifax county, James B. Wilborn, mayor of South Boston, Issued a search warrant authorizing and requiring Policeman Chaney to search Gilly Hall's dwelling and premises for ardent spirits. Not conforming to the requirements of the Virginia search and seizure law, the warrant was illegal and void.
On the same day, Chaney, acting under the search warrant, searched the dwelling house of Gilly Hall and found in her pantry a half-gallon fruit jar of corn whisky, another half-gallon fruit jar containing about two gills of corn whisky, three empty half-gallon fruit jars smelling strongly of whisky, a small drinking* glass, and a red rubber tube, commonly called a siphon, both of which had the odor of whisky. On the floor of the west room upstairs there was also found a sheet of paper, part* of a letter dated March 24, 1922, from Winston-Salem, N. C. The letter begins, "Dear Brother." The signature of the writer does not appear on the paper, but on the reverse side is written in a different handwriting the names "Mrs. Amanda Betts, South Boston, Va., " and "A. P. Betts, " and the following entries, in pencil:
The room in which the paper was found was regularly occupied by A. P. Betts and his wife, Amanda Betts, the daughter of Gilly Hall. Gilly Hall had in her possession a key with which, at the request of the officers, she unlocked the door to the closet in the room occupied by Betts and his wife. Gilly Hall's reputation for violating the prohibition law was bad.
Upon conviction, the mayor of South Boston sentenced her to jail for 30 days and to pay a fine of $100. Upon appeal to the circuit court, the judgment complained of was entered.
The first assignment of error challenges the action of the court in admitting as evidence against the accused the incriminating articles obtained under the illegal and invalid search warrant.
The question here raised is one of first impression in this court. In other jurisdictions the authorites are in sharp and irreconcilable conflict. The contest here is waged around section 10 of the Virginia Bill of Rights, the Virginia Search and Seizure Act of 1920. and articles 4 and 5 of the Amendments to the Constitution of the United States.
Section 10 of the Virginia Bill of Rights reads:
"That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted."
The Virginia Search and Seizure Law (Acts of 1920, p. 516) will be hereafter referred to somewhat in detail.
Amendment 4 to the Constitution of the United States provides as follows:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Amendment 5 to the Constitution of the United States provides, among other things, as follows:
"No person * * * shall be compelled in any criminal case to be a witness against himself."
The admissibility of evidence is not affected by the illegality of the means by which it has been obtained, unless it appear that the defendant has been compelled himself to give or produce it, as where a confession obtained by duress is offered in evidence. And where evidence is acquired by an illegal search and seizure it cannot be said that the defendant has been himself compelled to give or produce it.
Where the evidence produced is competent and pertinent to the issue, the court will not stop the trial of a case to investigate the means by which it was procured. Such a course would involve the trial of an outside issue, either collateral or independent, and tend to confuse the issues and create unnecessary delay in the trial of the principal ease. See authorities hereafter cited herein. It would mean that the court must pause in the trial of a criminal case to decide property rights between wrongdoers. This the court will not do, especially where the property involved is contraband and forfeited to the commonwealth, and not lawfully in the possession of the party complaining. The policy of the law in such cases is to refuse relief and leave the parties where it finds them.
A police officer, when acting without a warrant, or under a void warrant, acts without authority or color of authority from the state, and ceases to be its agent and he alone is responsible for his illegal acts. The court will decline to impose an indirect penalty on the commonwealth and prejudice its right to enforce its penal laws, by refusing to admit the evidence produced by him.
Not being a representative of the state, but a trespasser, the use of the evidence by the state cannot be said to confirm his acts and make them its own.
We concur with the courts of all jurisdictions that the constitutional guaranty that the citizens shall be protected against illegal searches and seizures should be rigidly enforced. But the violation of this right is complete when the search is made and the goods taken into possession, and the subsequent use of the articles taken as evidence is no part of such violation.
In the admission of the testimony illegally obtained, the court in no way condones the offense of the officer, nor relieves him from proper punishment, but refuses to allow the defendant to escape just punishment for his violation of the law because the officer is also guilty of its violation. In so holding, we do the defendant no injustice. She can protect the sanctity of her home, without denying the state the right to use pertinent evidence, by applying remedies which the law provides.
The Virginia Search and Seizure Act of 1920 (Acts 1920, c. 345) was manifestly passed to protect and enforce the rights of the citizens guaranteed to them by section 10 of the Virginia Bill of Rights. Section 4 of the act provides that:
"Any officer or other persons searching any house, place, " etc., "otherwise than by virtue of and under a search warrant, " provided for in the act,
Had the Legislature deemed further penalties necessary for the protection of the citizens against illegal searches and seizures, it would doubtless have prescribed them. Having failed to do so, the duty does not rest upon the courts to inflict additional penalties, and one accused of crime in this jurisdiction cannot be heard to contend that property seized under an illegal search warrant cannot be used as evidence against him.
The view we have expressed as to the admissibility of evidence secured by illegal means is supported by the overwhelming weight of authority.
In England, in the case of Stockfleth v. De Taset, 4 Camp. 11, the court said:
"What is proved to have been written or signed by any of the defendants, I must admit as evidence against them, without considering how it was obtained."
And in the case of Caddy v. Barlow, 17 E. C. L. 252, 1 Man. & Ry. 275-277, involving a malicious prosecution, it was held that a copy of the indictment was receivable as evidence, though not procured according to law, "without inquiry of the mode by which he became possessed of it."
In Canada, in the case of R v. Doyle, 12 Ont. 350, liquors obtained by unlawful search and seizure were held to be properly admissible as evidence.
Among the cases in state courts reaching conclusions in harmony with our own are the following: Commonwealth v. Dana, 2 Mete. (Mass.) 329, 337; Commonwealth v. Wilkins, 243 Mass. 356, 138 N. E. 13...
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